190 P.2d 208

#### HERON v. GAYLOR et al. (two cases). SAME v. JAYNES et al.

Nos. 4956, 4957, 4958.

Supreme Court of New Mexico.

Nov. 10, 1947.

Rehearing Denied March 9, 1948.

Kenneth A. Heron, of Chama, per se.

Harry L. Bigbee, of Santa Fe, for appellees.

BRICE, Chief Justice.

These are companion cases and may be disposed of by one opinion.

The trial court at the close of the testimony in each of these cases announced in effect that he would discard all of the testimony of the appellant, a witness in his own behalf, and upon which his right to recover depended; and he then proceeded to determine each case upon the testimony introduced by the respective defendants.

We have examined the appellant’s testimony carefully, and are of the opinion that there was no such inherent improbability as to the • truthfulness of appellant’s testimony that would authorize such action on the part of the trial court.

We are of the opinion that the appellant did not have a fair and impartial trial in each of these cases, because of the unwarranted refusal of the trial court to consider his testimony in making its decision; *24and that justice requires a new trial in each case. Testimony oí a witness, interested or not, cannot arbitrarily be disregarded by the trier of the facts. Chesapeake & Ohio R. Co. v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983; Medler v. Henry, 44 N.M. 275, 101 P.2d 398.

The judgment in each of the respective causes is reversed with instruction to the trial court to set it aside and grant to the appellant a new trial.

It is so ordered.

LUJAN, SADLER, and COMPTON, JJ„ and E. T. HENSLEY, Jr., D. J., concur.

McGHEE, J., did not participate.